SMITH v. ARTUS

The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge

REPORT AND RECOMMENDATION

Brunce N. Smith, proceeding pro se, brings this petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Following a
jury trial in Bronx County Supreme Court, Smith was convicted of
Attempted Murder in the Second Degree, Assault in the First Degree,
Criminal Possession of a Weapon in the Second Degree, and Criminal
Possession of a Weapon in the Third Degree. He was sentenced to
determinate terms of imprisonment totaling 32 years. Smith is currently
incarcerated pursuant to that judgment in Southport Correctional Facility
in Pine City, New York. For the reasons below, Smith's petition should be
denied.

I. BACKGROUND

A. The Crime

The following evidence was presented at trial concerning the
circumstances of the crime with which Smith was charged:

At approximately 1:00 a.m. on August 21, 1997, James "Mookie" Roberson
and his girlfriend, Antoinette Macklin, were in the lobby of 370 East
153rd Street in the Bronx. (Macklin: Tr. III 46-48).*fn1 Macklin was sitting on the steps in
the lobby and Roberson was selling drugs behind an exit door. (Macklin:
Tr. IK 48, 50, 53, 64-65, 86). The lobby was well-lit. (Macklin: Tr. III
65-66). Macklin saw "Nat" and a man whom she believed to be Nat's cousin
walk past her and then she heard two gunshots. (Macklin: Tr. III. 48-50).
As they passed Macklin again, Macklin saw the handle of a gun in Nat's
hand, which he put in the back of his pants. (Macklin: Tr. IK 49-50,
66-67, 111-13). Then Macklin saw Roberson lying on the floor. (Macklin:
Tr. III 49).

At trial, Macklin identified "Nat" as Smith, whom she had known since
she was young. (Macklin: Tr. III. 51-53). She described the gun as silver
and black and stated on cross-examination that the gun displayed by the
prosecution at trial as the murder weapon was not the gun she had seen in
Smith's hand. (Macklin: Tr. III. 66-67, 111-13).

Police Officers Timothy Anderson and William Clark responded to the
scene. (Anderson: Tr. II. 225-26; Clark: Tr. II. 246). They observed
Roberson lying face down on the stairs in a pool of blood. (Anderson: Tr.
II. 227; Clark: Tr. II. 247). The officers recovered spent shell casings,
pieces of lead and copper jacketing, and bloody clothing at the scene.
(Anderson: Tr. II. 228). Detective Hal Sherman also responded to begin an
investigation into the crime. (Sherman: Tr. II. 236-38). Detective
Sherman testified that two discharged .45 automatic shells and one intact
9mm cartridge were recovered from the scene. (Sherman: Tr. II. 237-38,
244). He stated that he was certain that a .45 automatic was discharged
that night but that there was no evidence that a 9mm gun had been fired.
(Sherman: Tr. II. 240-44). William Cuevas, an Emergency Medical Technician, also responded to the
scene and observed that Roberson had been shot in the throat and groin.
(Cuevas: Tr. III. 120-22). He testified that Roberson was in shock and
had injuries that usually result in death within minutes. (Cuevas: Tr.
III. 123-25). Doctor John Vecchione, who treated Roberson until a week
prior to the trial, testified that as a result of his gunshot wounds,
Roberson is paralyzed below the neck and is unable to talk or swallow.
(Vecchione: Tr. III. 137-38, 141-44). A few weeks before the trial
Roberson gained the ability to nod. (Vecchione: Tr. III. 141).

At about 1:40 a.m. on August 29, 1997, eight days after the shooting,
Police Officer Arthur Schroder and other officers in the Taxi Livery Task
Force pulled over a livery cab that sped past them, wove in and out of
traffic without signaling, and made an illegal entry into a service road.
(Schroder: Tr. II. 257-59, 267-70). As Officer Schroder approached the
car, he saw Smith, who was in the rear passenger seat of the car, lean
forward and slump down. (Schroder: Tr. II. 260). Officer Schroder shined
a light through the window and saw that Smith had his right hand inside
of his pants. (Schroder: Tr. II. 260, 273-74). He saw a large bulge which
he believed to be a gun so he asked Smith to show his hands and exit the
vehicle. (Schroder: Tr. II. 260, 274-76). Officer Schroder searched
Smith and recovered a loaded .45 caliber Gloch pistol from his groin
area. (Schroder: Tr. II. 260-62, 264-65). Two small bags of marijuana
were also recovered from the pocket of Smith's pants. (Schroder: Tr. II.
262-63). Smith was placed under arrest. (Schroder: Tr. II. 262).
Detective Luis Fontanez tested the weapon recovered and concluded that it
was operable. (Fontanez: Tr. II. 295-98).

Detective Raymond Bryne was assigned to investigate Roberson's shooting
before any perpetrator had been identified. (Bryne: Tr. II. 279-80). He
interviewed Macklin on August 22, a day after the shooting, and she gave him Smith's name and
description. (Bryne: Tr. II. 280-87 referring to Macklin as "Annette
McChin")). A wanted card was issued and wanted posters were sent
throughout the city. (Bryne: Tr. II. 282). Detective Bryne later learned
that Smith had been arrested. (Bryne: Tr. II. 282-83).

Detective Joseph Ramirez performed a ballistics examination comparing
the spent shell casings recovered from the scene with test samples from
the .45 caliber Gloch recovered from Smith in the livery cab. (Ramirez:
Tr. II. 303-08). Based on these tests, he concluded that the shell
casings were fired from that .45 caliber Gloch and not from any other
gun. (Ramirez: Tr. II. 308).

The defense presented no evidence at trial.

B. Evidence as to Motive

Prior to trial, the court considered whether Macklin should be
allowed to testify regarding the relationship between Roberson and Smith.
(Tr. I. 7-15, 24-29). The People's theory was that Roberson had
previously worked for Smith as a drug dealer and that Roberson had
recently switched suppliers, thus providing a motive for the shooting.
(Tr. I. 7-8, 10). The prosecutor argued that such testimony could come in
as evidence of Smith's motive and intent under People v.
Molineux, 168 N.Y. 264, 293 (1901) ("evidence of other crimes is
competent to prove the specific crime charged when it tends to
establish . . . intent"). (Tr. I. 11, 13, 25-26).

When the prosecution first raised the issue, the trial court indicated
that it needed more specifics before making a ruling. (Tr. I. 15). The
court stated that it was "concerned about the circumstances under which
[these facts would] com[e] out, the basis of [Macklin's] knowledge, for
example. . . . The witness cannot testify, you know, from having heard it
in the neighborhood, things like that." (Tr. I. 27). The prosecutor then
asked, "[I]f I could provide the Court with information regarding
[Macklin] having direct and personal knowledge of any prior transaction,
would that be enough, Your Honor?" (Tr. I. 28). The court responded, "I
think that would unquestionably go towards making such evidence
admissible. At this point I don't know that that exists [and] . . . I
want to make sure that that's what is going to happen." (Tr. I. 29).

Later, the prosecutor asserted that Macklin had actually seen Roberson
and Smith exchange drugs and money but that she did not have personal
knowledge of a dispute between them. (Tr. I. 117-22). The court stated it
was "uncomfortable" with allowing such testimony in the absence of
knowing what Macklin would say. (Tr. I. 122). A few days later, the
prosecutor expressed her own discomfort, "I'm really concerned about
[Macklin's] testimony because she's just the kind of witness that it may
come out any way no matter how hard I try to prepare her. I'm very
concerned." (Tr. II. 254).

On the morning Macklin was to testify, the prosecutor told the court:

[Macklin] can say that this Defendant used to give
bundles of drugs to Mr. Roberson and Mr. Roberson
used to give him for the sale of that [sic] drugs,
the money that he received for the sale of that
[sic] drugs and that she can definitively say that
Mr. Roberson stopped selling drugs for this man
and sold for another person by the name of E or
Eric is what I've been told and this was shortly
before his shooting, Your Honor, and I think that
goes directly towards motive, intent, . . . it
goes towards all the issue[s] under the uncharged
crime.

(Tr. III. 2-3). Based on this offer of proof, defense counsel
stated that she did not have any objections to the court allowing the
testimony. (Tr. III. 3).

On direct examination, Macklin was asked about the relationship between
Roberson and Smith. Macklin testified that at about 1:00 or 2:00 p.m. on
the day of the shooting, she had seen Roberson and Smith talking outside.
(Macklin: Tr. III. 54-55). She stated that Roberson used to sell drugs for Smith for about two or three years. (Macklin: Tr.
III. 53). She said that she had seen Smith give drugs to Roberson and
Roberson give money back to Smith. (Macklin: Tr. III. 53-54). She
testified as follows with regard to Roberson's switching suppliers:

Q: On the day that Mookie was shot, was he still
selling for the Defendant who you know as Nat?

A: No.

Q: Who was he selling for on that day?

A: Nat.

Q: No, on the day he was shot, was he selling for
Nat?

A: No.

Q: Who was he selling for?

A: Nobody.

Q: He wasn't selling for anybody?

A: No.

Q: That you know of?

A: No.

(Macklin: Tr. III. 54).

On cross-examination, Macklin's testimony became confused and
internally inconsistent. To begin, Macklin was unable to articulate
clearly when her relationship with Roberson began. (Macklin: Tr. III.
69-70). Macklin testified that when she first started hanging out with
Roberson, he was selling drugs for a guy named "Ed" or "E" (Macklin: Tr.
III. 71), though Macklin was equivocal as to whether "Ed" and "E"
referred to one person or two. (Macklin: Tr. III. 71, 90, 92-96). Macklin
testified that when she started dating Roberson, he was selling for both
Ed and Smith. (Macklin: Tr. III. 71). With regard to her knowledge of
Roberson and Smith's drug activities, Macklin testified as follows:

Q: In all the time that you were with Mookie, were
you around when Mookie would get his drugs to sell
from either Nat or from Ed?

A: No.

Q: You never saw that happen?

A: No. I wasn't around most of the time. Q: Well, were you ever with Mookie when he had
brought drugs over to either his

apartment or wherever they would do their
business?

A: No.

Q: And were you ever around when Nat brought drugs
over to give to Mookie to sell?

A: No.

. . . .

Q: How did you know that your boyfriend was drug
dealing?

A: He used to be up in my house.

Q: He was what?

A: He would be up in my house.

Q: He was in your house?

A: Yes.

Q: When I asked you the question, "would you ever
be in his house when he got his drugs?," was it
just I asked you the wrong question?

A: Yes.

Q: Were the drugs brought to your house to be
distributed?

A: No.

Q: Where were the drugs distributed?

A: On him.

Q: Let's start from a smaller place. Did you ever
see your boyfriend Mookie receive drugs to sell
from anyone?

A: No.

Q: How do you know that he was a drug dealer?

A: Cause he used to be outside everyday and I used
to be with him.

Q: Outside on the street?

A: Yes.

Q: And behind that exit door, right?

A: Yes.

Q: Now, did you see him selling?

A: I used to be outside, see him doing it.

Q: And where did he get the drugs from that he
sold?

A: Nat.

Q: And how do you know that?

A: I just know.

Q: I don't think that's the right answer, Ms.
Macklin. Did you see, did he tell you?

A: No.

Q: Okay, how do you know?

A: Cause he used to take it out of his pocket.

Q: Mookie used to take it out of his pocket? A: Yes.

Q: Did you see who gave him the drugs to sell?

A: No.

Q: So, then how do you know he got them from Nat?

A: Cause he never told me, but I just probably
think he did.

Q: You just made that up in your own head?

A: No.

Q: Okay, how do you know? You're under oath here,
Ms. Macklin, okay. That means you have got to tell
the truth.

A: I am telling the truth.

Q: How do you know that Nat gave Mookie the drugs
to sell?

A: I think so. I'm just telling you, I think so he
did.

Q: When you say you think so, are you telling this
jury that you never saw Nat give Mookie any drugs?

A: That's what I'm saying.

Q: Okay, now did I just hear you wrong or did you
tell Ms. Bethel this morning, that means also told
the jury this morning that you saw Nat give the
drugs to Mookie and you saw Mookie give money back
to Nat?

A: Yes.

Q: Did you testify to that this morning?

A: Yes.

Q: You recall that?

A: Yes, I do.

Q: Is that true?

A: Yes.

Q: Well, then why don't you tell us about that?
Did you see Nat give drugs to Mookie?

A: Yes.

Q: When?

A: I been out there, I seen a couple of times.

Q: On the street he would give it to him?

A: No. In the lobby.

Q: I'm sorry.

A: In the lobby.

Q: Did he ever give it to him in an apartment?

A: No.

(Macklin: Tr. III. 73-77).

Contrary to her testimony on direct examination, Macklin also testified
on cross-examination that Roberson was selling for both E and Smith on
the night of the shooting (Macklin: Tr. III. 87). However, she was unable to articulate
anything but second-hand knowledge of this arrangement:

Q: You told Detective Brown that the reason Nat
came in and shot Mookie was because Nat was so
angry that he was selling for E, right?

A: Yes.

Q: But in fact what you're telling us now is that
Mookie was selling for both E and Nat, right?

A: Yes.

Q: And this is something Mookie told you?

A: He ain't tell me nothing.

Q: How do you know that?

A: Just heard from the ears.

Q: You heard what?

A: From the ear  from a horse's mouth.

Q: From whose mouth?

A: A horse's mouth.

Q: Well, who's the horse?

A: Person is not here.

Q: Who's it?

A: It was somebody live in my building.

Q: Who?

A: It was a girl.

Q: And what is her name?

A: Cathy.

Q: And what did Cathy tell you?

A: What she told me, she ain't tell me that much.

Q: What little bit did she tell you?

. . . .

A: I really don't remember what she had told me
that day.

(Macklin: Tr. III. 88-90). Macklin then apparently changed her
testimony again and said that

Roberson did not start selling for E until after he stopped selling for
Smith. (Macklin: Tr. III. 91-92). She stated that Roberson stopped
selling drugs for Smith two or three years before the shooting. (Macklin:
Tr. III. 92-96). However, when the police arrived after the shooting,
Macklin had told them that the reason Smith shot Roberson was because he
was angry because Roberson had switched suppliers to E. (Macklin: Tr. III. 88,
107-08). On cross-examination she stated that this was no longer her
testimony. (Macklin: Tr. III. 108-09).

Macklin also admitted that when she saw Smith and Roberson talking on
the day of the shooting, E was also with them. (Macklin: Tr. III. 83-85,
87). She said that she had forgotten that E was there when the prosecutor
had asked this question on direct examination. (Macklin: Tr. III. 85).
When Macklin saw them talking, everything seemed fine and the three
seemed friendly with each other. (Macklin: Tr. III. 87, 96-97, 99).

C. The Jury

On the fourth day of the trial, the court learned that the previous
week a woman had approached two members of the jury-Juror 8 and Juror 12
 on the street as they left the courthouse. (Tr. III. 4-7, 14-15).
The woman asked the two jurors what they thought of the case and whether
they thought Smith was guilty or not guilty. (Tr. III. 4-6, 15). They
responded, "I don't know," and walked away. (Tr. IK 6-7, 15). Juror 12
recognized the woman as someone who sat in the audience every ...

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